State v. Cole

• Decision Date: 04 October 1943
• Docket Number: 38536
• Citation: 174 S.W.2d 172
• Parties: STATE v. COLE
• Court: Missouri Supreme Court

174 S.W.2d 172

STATE v. COLE

No. 38536

Supreme Court of Missouri, Second Division

October 4, 1943

I. Joel Wilson, of St. Louis, for appellant.

Roy McKittrick, Atty. Gen., and L. I. Morris, Asst. Atty. Gen for respondent.

OPINION

WESTHUES, Commissioner.

Appellant was convicted of murder in the first degree and sentenced to suffer death. He appealed. The evidence disclosed that on the night of December 19, 1941, Geraldine Brookfield, about seven years old, was brutally murdered by strangulation in an alley near her home, located at 2352a Market street, St. Louis Missouri. The next morning her body was found on a heap of ashes in the alley. The evidence established the corpus delicti beyond any question. The evidence connecting the defendant with the crime, except for his alleged confession was entirely circumstantial and these circumstances were meager indeed. However, appellant's confession and the evidence were sufficient to sustain the verdict.

Appellant briefed a number of points seeking a reversal of the judgment. One, that instructions on murder in the second degree and manslaughter should have been given. To this we cannot agree. The evidence disclosed that the victim had been strangled to death and also had been criminally assaulted. The evidence was clear that the guilty party had either attempted to or had actually ravished the child, and the imprints on her neck and throat disclosed strangulation. This evidence was given by a doctor who examined the body of the child. It was a case of murder in the first degree. Mo.Rev.St. Ann.1939, sec. 4376, Mo.R.S.A.

The court gave an instruction concerning statements alleged to have been made by the defendant. This instruction reads as follows: ''If you believe and find from the evidence that the defendant made any voluntary statement or statements in relation to the offense charged in the indictment after such offense is alleged to have been committed, you must consider such statement or statements all together, and in the light of the circumstances under which you may believe they were made and determine whether such statement or statements were voluntary or involuntary. The defendant is entitled to what he said for himself, if true, and the State is entitled to the benefit of anything he may have said against himself in any statement or statements proved by the State. What the defendant said against himself, if any thing the law presumes to be true, unless negatived by some other evidence in the cause, because said against himself. What the defendant said for himself, the jury are not bound to believe, because it was said in a statement or statements proved by the State, but the jury may believe or disbelieve it as it is shown to be true or false by the evidence in this cause; it is for the jury to consider, under all the facts and circumstances in evidence, how much of the whole statement or statements of the defendant proved by the State, the jury, from the evidence in this case, deem worthy of belief.'' Appellant preserved for our review the question of whether the giving of this instruction was error. Instructions of this character have been uniformly condemned by this court since the ruling by the court en banc in the case of State v. Johnson, 333 Mo. 1008, 63 S.W.2d 1000, loc.cit. 1003. In State v. Duncan, ...